IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No. 1421 of 2018
.
Date of Decision No.20.11.2018
_
Desh Raj …….. Petitioner
Versus
State of Himachal Pradesh …..Respondent.
_
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the petitioner: Mr. Digvijay Singh, Advocate
For the respondent: Mr. S.C.Sharma Mr. Dinesh
Thakur, Additional Advocate
Generals, with Mr. Amit Kumar,
Deputy Advocate General.
_
Sandeep Sharma, Judge (oral):
Sequel to order dated 30.10.2018, whereby bail
petitioner namely, Desh Raj was ordered to be enlarged on bail
in the event of arrest in relation to FIR No.268 of 2018, dated
13.10.2018, under Sections 366, 376, 120B and 506 of IPC
registered at police Station, Balh, District Mandi, H.P, SI Hem
Raj has come present alongwith the record. Mr. Amit Kumar
Dhumal, learned Deputy Advocate General has also placed on
1
Whether the reporters of the local papers may be allowed to see the judgment?
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record status report, prepared on the basis of the investigation
carried out by the Investigating Agency. Record perused and
.
returned.
2. Close scrutiny of the record/status report, reveals
that on 13.10.2018 complainant, namely Smt. Sarla Devi, who
happened to be mother of the victim (hereinafter referred to
as the prosecutrix) lodged complaint at police Station, Balh,
District Mandi,H.P., alleging therein that on 7.10.2018 her
daughter had gone to the house of her friend Veena Devi, but
she did not return till 9.10.2018, whereafter maternal Uncle of
Veena Devi gave a phone call to her daughter Pooja, whereby
he informed that her daughter i.e. prosecutrix has solemnized
marriage with his Nephew i.e. present bail petitioner Desh
Raj. Complainant alleged that on 10.10.2018, maternal Uncle
of bail petitioner came to her house and informed that
prosecutrix has solemnized marriage with the bail petitioner,
but they refused to send her daughter to her house. On
12.10.2018, person namely Kishan Chand informed that
function is being organized on account of marriage of bail
petitioner with the prosecutrix, but suddenly on 13.10.2018, at
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7:00 AM somebody on phone informed that prosecutrix has
left the house of bail petitioner without intimating anybody.
.
Complainant alleged that bail petitioner in connivance with
his relatives allured her daughter and subsequently compelled
her to solemnize marriage with him. On the basis of aforesaid
complaint, FIR detailed hereinabvoe, came to be lodged
against the present bail petitioner on 13.10.2018 under
Sections 366, 376 and 120B of IPC. On 15.10.2018,
prosecutrix came back to her village and allegedly informed
complainant that she was forced to solemnize marriage with
bail petitioner, who sexually assaulted her against her wishes.
On 15.10.2018, police got recorded the statement of
prosecutrix under Section 164 Cr.P.C, wherein she stated that
bail petitioner with the help of his relatives forcibly solemnize
marriage with her and thereafter sexually assaulted her.
Police also got prosecutrix medically examined, wherein it has
been opined that possibility of sexual assault cannot be ruled
out, however report of FSL, is still awaited.
3. Mr. Amit Kumar Dhumal, learned Deputy
Advocate General, on the instructions of Investigating Officer,
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fairly stated that pursuant to order dated 30.10.2018 bail
petitioner has joined the investigation and is fully cooperating
.
in the investigation. He also stated that at this stage nothing
is required to be recovered from the bail petitioner, however
his enlargement on bail at this stage, can be detrimental to the
investigation and as such, prayer made in the instant
application may be rejected.
4. Mr. Digvijay Singh, learned counsel representing
the bail petitioner, while making this court to travel through
the record/status report, vehemently argued that no case, if
any, is made out against the bail petitioner under Sections 366
and 376 IPC because there is nothing on record to suggest that
bail petitioner allured and then compelled the prosecutrix to
solemnize marriage with him. Rather, evidence available on
record itself suggest that prosecutrix, who is major, of her own
joined the company of bail petitioner and then in the presence
of her family members, especially maternal Grand father
solemnized marriage in a temple at Sundernagar. He also
contended that after solemnization of marriage, both i.e. bail
petitioner and prosecutrix went to Public Notary where they
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both executed affidavits, stating therein that they both are
major and they with their own volition have solemnized
.
marriage and as such, bail petitioner has been falsely
implicated in the case. He further contended that since
complainant is not happy with the present marriage, she has
compelled the prosecutrix to falsely depose against the bail
petitioner, who is now her husband. Learned counsel for the
petitioner also made available photographs in the Court to
demonstrate that marriage was solemnized in a temple,
whereafter prosecutrix remained in the company of bail
petitioner and other family members for almost one week and
during this period no attempt, whatsoever was ever made by
her to lodge complaint, if any, against the bail petitioner or
other family member, which clearly suggest that she was
happy with the marriage, but subsequently on the insistence
of her mother, she gave false statement under Section 164
Cr.P.C. He also invited attention of this Court to the
statement of Sh. Ram Singh, who happened to be maternal
Grand father of prosecutrix, to demonstrate that prosecutrix of
her own will had solemnized marriage in the presence of her
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maternal grand father and at no point of time, she was ever
compelled by the bail petitioner or other family members.
.
5. Learned Deputy Advocate General, while
responding to the aforesaid arguments having been made by
learned counsel for the petitioner, contended that keeping in
view the gravity of the offences allegedly committed by the
bail petitioner, he does not deserves to be enlarged on bail.
Learned Additional Advocate General further contended that
statement having been made by the prosecutrix under Section
164 Cr.P.C, clearly suggests that bail petitioner in connivance
with other family members firstly allured the prosecutrix and
then solemnized marriage with her by making her to consume
some intoxicating substance.
6. Having heard learned counsel for the parties and
perused the material available on record, this Court finds that
at the time of alleged incident prosecutrix was major. It is also
not in dispute that prosecutrix had gone to the house of bail
petitioner of her own, because there is no evidence to suggest
that bail petitioner or his family members compelled the
prosecutrix to join their company. It has specifically come in
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the statement of Ram Singh, who happened to be maternal
grand father of prosecutrix that prosecutrix wanted to marry
.
the present bail petitioner and she of her own volition
solemnized marriage with the bail petitioner. It is also not in
dispute that marriage was solemnized on 9.10.2018 at
Sundernagar Temple,whereafter admittedly prosecutrix
remained in the company of bail petitioner or other family
members for almost a week. As per own version of
complainant, she was in constant touch of the family members
of bail petitioner till 13.10.2018 when complainant was
informed that some function is being organized on account of
solemnization of marriage. But there is nothing on record to
suggest that during this period attempt, if any, was ever made
by prosecutrix to raise hue and cry to lodge the complaint, if
any, against the bail petitioner or other family members qua
their forcible act, if any.
7. Leaving everything aside, affidavits adduced on
record by the investigating Officer, which were executed by the
bail petitioner and prosecutrix on 11.10.2018, clearly suggest
that they of their own volition had solemnized marriage at
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Sundernagar Temple. These affidavits also reveals that by
that time both parties were major. Interestingly, maternal
.
grand father of prosecutrix is one of the witness to the
affidavits. Advocate Pawan, before whom affidavits were
executed, have also stated that both bail petitioner and
prosecutrix had personally come to him and stated that they
have solemnized the marriage. Though, aforesaid aspects of
the matter are to be considered and decided by the court below
on the basis of the totality of evidence collected on record by
the investigating agency, but having perused the material
available on record at this stage, this Court sees no reason for
custodial interrogation of bail petitioner and as such, he
deserves to be enlarged on bail. Otherwise also, it is well
settled that till the time guilt of a person is not proved in
accordance with law, he/she is deemed to be innocent.
8. It has been repeatedly held by Hon’ble Apex Court
as well as this Court that freedom of an individual cannot be
curtailed for indefinite period, especially when his/her guilt is
yet to be proved, in accordance with law.
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9. Recently, the Hon’ble Apex Court in Criminal
Appeal No. 227/2018, Dataram Singh vs. State of Uttar
.
Pradesh Anr decided on 6.2.2018 has held that freedom of
an individual cannot be curtailed for indefinite period,
especially when his guilt has not been proved. It has further
held by the Hon’ble Apex Court in the aforesaid judgment that
a person is believed to be innocent until found guilty. The
Hon’ble Apex Court has held as under:
2. A fundamental postulate of criminal
jurisprudence is the presumption of innocence,
meaning thereby that a person is believed to be
innocent until found guilty. However, there are
instances in our criminal law where a reverse onus
has been placed on an accused with regard to some
specific offences but that is another matter and
does not detract from the fundamental postulate in
respect of other offences. Yet another important
facet of our criminal jurisprudence is that the
grant of bail is the general rule and putting a
person in jail or in a prison or in a correction home
(whichever expression one may wish to use) is an
exception. Unfortunately, some of these basic
principles appear to have been lost sight of with the
result that more and more persons are being
incarcerated and for longer periods. This does not
do any good to our criminal jurisprudence or to our
society.
10. By now it is well settled that gravity alone cannot
be decisive ground to deny bail, rather competing factors are
required to be balanced by the court while exercising its
discretion. It has been repeatedly held by the Hon’ble Apex
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Court that object of bail is to secure the appearance of the
accused person at his trial by reasonable amount of bail. The
.
object of bail is neither punitive nor preventative. The Hon’ble
Apex Court in Sanjay Chandra versus Central Bureau of
Investigation (2012)1 Supreme Court Cases 49; wherein it
has been held as under:
” The object of bail is to secure the appearance of
the accused person at his trial by reasonable
amount of bail. The object of bail is neither
rpunitive nor preventative. Deprivation of liberty
must be considered a punishment, unless it can
be required to ensure that an accused person will
stand his trial when called upon. The Courts owe
more than verbal respect to the principle that
punishment begins after conviction, and that
every man is deemed to be innocent until duly
tried and duly found guilty. Detention in custody
pending completion of trial could be a cause of
great hardship. From time to time, necessity
demands that some unconvicted persons should
be held in custody pending trial to secure their
attendance at the trial but in such cases,
“necessity” is the operative test. In India , it
would be quite contrary to the concept of
personal liberty enshrined in the Constitution
that any person should be punished in respect of
any matter, upon which, he has not been
convicted or that in any circumstances, he should
be deprived of his liberty upon only the belief that
he will tamper with the witnesses if left at
liberty, save in the most extraordinary
circumstances. Apart from the question of
prevention being the object of refusal of bail, one
must not lose sight of the fact that any
imprisonment before conviction has a substantial
punitive content and it would be improper for
any court to refuse bail as a mark of disapproval
of former conduct whether the accused has been
convicted for it or not or to refuse bail to an
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unconvicted person for the propose of giving him
a taste of imprisonment as a lesson.”
11. Needless to say object of the bail is to secure the
.
attendance of the accused in the trial and the proper test to be
applied in the solution of the question whether bail should be
granted or refused is whether it is probable that the party will
appear to take his trial. Otherwise, bail is not to be withheld
as a punishment. Otherwise also, normal rule is of bail and
not jail. Court has to keep in mind nature of accusations,
nature of evidence in support thereof, severity of the
punishment which conviction will entail, character of the
accused, circumstances which are peculiar to the accused
involved in that crime.
12. The Hon’ble Apex Court in Prasanta Kumar
Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC
496, has laid down the following principles to be kept in mind,
while deciding petition for bail:
(i) whether there is any prima facie or
reasonable ground to believe that the accused
had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
released on bail;
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(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
.
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being thwarted
by grant of bail.
13. Consequently, in view of the above, order dated
30.10.2018, passed by this Court, is made absolute, subject to
petitioner’s furnishing personal bonds in the sum of Rs. 1,00,000/
( Rs. One Lakh) with one surety in the like amount, to the
satisfaction of the Investigating Officer, besides the following
conditions:
a. He shall make himself available for the purpose of
interrogation, if so required and regularly attendthe trial Court on each and every date of hearing
and if prevented by any reason to do so, seekexemption from appearance by filing appropriate
application;
b. He shall not tamper with the prosecution evidence
nor hamper the investigation of the case in any
manner whatsoever;
c. He shall not make any inducement, threat or
promises to any person acquainted with the facts
of the case so as to dissuade them from disclosing
such facts to the Court or the Police Officer; andd. He shall not leave the territory of India without the
prior permission of the Court.
14. It is clarified that if the petitioner misuses his
liberty or violates any of the conditions imposed upon him, the
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investigating agency shall be free to move this Court for
cancellation of his bail.
.
15. Any observations made hereinabove shall not be
construed to be a reflection on the merits of the case and shall
remain confined to the disposal of this application alone.
The bail petition stands disposed of accordingly.
Copy dasti.
(Sandeep Sharma),
r Judge
20th November, 2018
(shankar)
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